Local Government minister July Moyo’s decision to give immunity from prosecution to a company owned by businessman Ken Sharpe implicated in land scandals in Harare is being challenged in court.
Prominent Harare land developer George Katsimberis has approached the High Court seeking to have the criminal immunity granted to Augur Investments, a company reportedly registered in Ukraine, Estonia or Mauritius with extensive interests in Zimbabwe withdrawn, arguing that it violates provisions of the constitution.
Katsimberis is also seeking to compel prosecutor general Nelson Mutsonziwa to prosecute Moyo, Augur Investments and its representative Tatiana Aleshina, as well as another company owned by Sharpe and Pokugara Properties who are cited as a second, third, fourth and fifth respondent, respectively.
He is arguing that the “clandestine” criminal immunity given to Augur was blocking the court from hearing his complaint against Moyo, Augur and Aleshina, a Ukrainian national but with permanent residence in Zimbabwe as well as Pokugara and thus, wants the court to grant him private prosecution if Mutsonziwa is not willing to prosecute them.
On May 28, 2019, Moyo, Harare City Council and Augur entered into an agreement and signed a deed of settlement that gave Augur immunity from prosecution in a bid to end the war over land between the local authority and Sharpe’s company.
Following the secret deed of settlement, the land was transferred to Augur.
The deed of settlement partly reads: “Upon signature of this deed of settlement, the minister (Moyo), City of Harare and Augur undertake to withdraw all and any legal actions and proceedings, both civil [and] criminal, pending against each other before the courts.
“The minister undertakes to instruct Coghlan, Welsh and Guest to release the title deeds to stand number 654 Pomona Township to Augur.
- Fresh land invasions hit Whitecliff
- Harare cancels Pomona waste deal
- Pomona cash row escalates
- Border Timbers targets European markets
“Immediately thereafter, the minister and/or the president shall sign all and any documents necessary to facilitate and effect the transfer of the said stand to Augur or its nominee, Doorex Properties within 14 days.”
The title deed for the land was being held in escrow by Coghlan, Welsh and Guest Legal Practitioners at the time of the secret agreement as the land was being contested between Augur and Trucking and Construction (T&C) Private Limited.
Katsimberis is being prosecuted for alleged fraud based on claims that he lied to Pokugara that he had secured building plans for a show house where the two were operating in a joint venture agreement.
The developer denies the charges and says all payments were done for the approval of the plan.
After the destruction of the show house, Katsimberis reported Pokugara Properties and City of Harare officials to the police, accusing them of perjury and malicious damage to property.
He is a witness in the case.
Katsimberis reported Pokugara to the police first, but no action has been taken, with the prosecution claiming he was reported first and is thus already under trial.
He believes his complaint was not dealt with because of the criminal immunity given to Augur and its associates.
Katsimberis has now approached the High Court seeking an order for Mutsonziwa to prosecute Moyo and Harare City Council whom he says have a case to answer.
He said the PG should issue a certificate confirming that he will prosecute Moyo and Harare City Council.
Through his lawyers, Mutumbwa Mugabe and Partners, Katsimberis wants the criminal immunity granted to Augur withdrawn.
“This is an application seeking the following relief: that the deed of settlement signed between the Augur Investments OU, (third respondent), The City of Harare (Sixth respondent) and the minister of Local Government and Public Works (second respondent) on 28 May 2019 be declared null and void as it is in violation of sections 56, 62 and 68 as read with sections 258, 259 and 260 of the constitution of Zimbabwe,” part of the application filed on August 23 reads:
“That any actions taken by the first (Mutsonziwa) and sixth (Pokugara) respondents to withdraw criminal charges against any person or entity pursuant to the deed of settlement signed between the Augur Investments OU, the City of Harare and the minister of Local Government and Public Works on 28 May 2019 be and is hereby declared null and void.”
He added: “That the first respondent must indicate, within 10 days of this order being granted, whether or not he intends to prosecute any person or entity in connection with the allegations of fraud made by the applicant against the second, third, fourth and fifth respondents as well as any charges that might emanate from the signature and implementation of the deed of settlement.
“That should the first respondent decline to prosecute the matters referred to in paragraphs (2), (3) and (4) above or, having decided to prosecute the matters, fails to do so within 30 days of his order, the first respondent be and is hereby ordered to issue a certificate indicating that he declines to prosecute at the public instance and issue the certificate.
“Applicant issues a certificate granting him the right to prosecute any person or entity privately in respect of any charges that may arise from or have been withdrawn or not prosecuted because of the deed of settlement signed between the Augur Investments OU, the City of Harare and the Minister of Local Government and Public Works on 28 May 2019.”
Katsimberis said the law should be applied with equality and non-discrimination.
He said every citizen has a right to administrative justice.
The property developer said documents provided by the court exposed how he has been a victim of fraud committed by Augur, Aleshina and Pokugara, enabled by the Harare City Council.
“It is common cause that despite the clear existence of fraud committed by the third and fifth respondents, perhaps with other person(s), the first respondent has not charged anyone with said fraud, and I have always wondered why this was the case until I got gifted with the tripartite deed of settlement and other papers in my own prosecution, where I noticed that at paragraph 6.7 of the same, the development project I am involved in is mentioned as one of the properties belonging to third respondent.
“Now, the failure to prosecute the case of fraud reported by me against fifth respondent and Kenneth Sharpe makes sense as it is covered by the immunity conferred by the agreement,” Katsimberis said.
He said President Emmerson Mnangagwa does not even have the immunity given to Augur.
“To the extent that second respondent purported to grant immunity from criminal prosecution to the persons named in Annexure “B”, as their present and future associates, he acted outside his powers and in a manner that was inconsistent with his duties and showed favour to the people whose criminal prosecution he effectively caused to be withdrawn or not initiated, and in violation of section 174 of the Criminal Law (Codification and Reform) Act; and “to the extent that first respondent acquiesced with the immunity granted in Annexure “B” he acted ultra vires the powers that are given to him in the constitution and potentially in violation of section 174 of the Criminal Law (Codification and Reform) Act.”
Katsimberis said the constitutionality of the immunity will have to be determined by the Constitutional Court.
He said Moyo acted outside his powers when he granted Augur the immunity.
“It is clear from the foregoing that the first respondent has disowned the prosecution of the crimes committed against myself precisely because of Annexure B, which the first respondent must believe binds him,” Katsimberis added.
“There is no other explanation for why his officers are going out of their way to perjure themselves and to disown (the Special Anti-Corruption Unit) SACU in the manner that they have, if not to try and show the first respondent that they have nothing to do with the prosecutions being carried out by SACU and referred to in Annexure “A”.
“It also explains the close cooperation that exists between the first respondent’s prosecutors at Rotten Row where I am being prosecuted for fraud with fourth respondent and associates of the third respondent and the refusal to furnish me with any further documents in the matter.
“Above all, it explains why the first respondent is carrying on with prosecuting me and disowning three prosecutions of the third respondent and its affiliates by SACU.
He claimed he has been denied the protection of the criminal justice system by virtue of the criminal immunity granted to Augur.
“Despite documents exposing illegal activities by the respondents, the law has been applied in a discriminatory manner,” he added in the application.
The respondents are yet to file their responses.